Balkinization: Let's Get The Criticisms Right, Shall We?

Let's Get The Criticisms Right, Shall We?

This poster from the Center for American Progress tries to raise the public's awareness of the dangers of appointing another justice like Antonin Scalia or Clarence Thomas. The problem is that it tends to confuse whether Scalia or Thomas think a policy is constitutional with whether they support the policy itself. And this is a very bad mistake to make, because it lends credence to the notion that liberals too often confuse what is just with what the Constitution requires.

The irony is that if the CAP simply reported the facts, it would still have a pretty persuasive indictment of the work of these two Justices. Regular readers of this blog know that I am a fan of neither Scalia's nor Thomas's jurisprudence, but I think they deserve to be criticized fairly based on a reasonable assessment of their records.

Here is what the CAP says about Scalia and Thomas, followed by my explanation of what is actually the case.

(1)"Scalia Opposes Efforts to Desegregate Schools." In fact, Scalia opposes the use of (some) federal judicial power to desegregate schools; he does not oppose desegregation per se.

(2)"Thomas favors state-sponsored religion." In fact Thomas believes that there is no constitutional bar for a state to have an established church as long as non-believers are not coerced. He does not say that he thinks that all (or any) states should have established churches.

(3)"Scalia supports sex discrimination." In fact, Scalia believes that separate educational institutions for men and women (or institutions just for men or just for women) are constitutional where there is a long history of sex-segregated practice. He does not say that states should have such institutions.

(4)"Thomas would allow the President to effectively waive due process rights." This one is more or less correct. Thomas argues that the courts should defer to good faith presidential decisions to declare certain persons as unlawful combatants and to detain them indefinitely without access to legal counsel. Thomas believes that the procedures offered by the President are all the process that is due, not that the President has the power to waive due process rights.

(5)"Scalia and Thomas oppose family and medical leave." Scalia and Thomas (and Justice Kennedy, too) believe that States cannot be sued for money damages if they fail to provide family and medical leave to their employees. They do not say that they oppose family and medical leave as a matter of policy.

(6)"Scalia and Thomas support executing the mentally retarded." Scalia and Thomas believe that doing so does not violate the Eighth Amendment's ban on Cruel and Unusual Punishments. They do not say that they favor the practice as a matter of policy.

(7)"Scalia and Thomas support brutality against prisoners." Once again, Scalia and Thomas believe that certain forms of prisoner mistreatment or brutality (which they regard as insignificant or which they do not believe involve "punishment") do not violate the Eighth Amendment's ban on cruel and unusual punishments. They do not say that they approve of these practices by states.

(8)"Scalia and Thomas support criminalizing consensual sex." Scalia and Thomas believe that the Due Process Clause does not prevent states from criminalizing consensual sex. They do not say they support such laws, and indeed, in Thomas's dissent in Lawrence he specifically says that he would not support Texas's law.

(9) "Scalia and Thomas oppose federal environmental regulation of polluters." Scalia and Thomas believe that the EPA should not have authority to prevent certain forms of air pollution even when states improperly fail to act. They do not say that they oppose federal regulation, merely that Congress has not authorized it.

(10) "Scalia and Thomas would allow states to discriminate against the disabled." Somewhat more accurate, but still not quite right. Scalia and Thomas believe that Congress does not have the power to allow suits for money damages against states when they discriminate against the disabled, but they have not said that states do not violate federal law when they do so, and presumably injunctive relief is still available.

Here's what the CAP should have said:

(1)Scalia wants to cripple judicial efforts to desegregate racially segregated public schools.

(2)Thomas would allow states to have established churches, and use tax money to promote a state's favored religion.

(3) Scalia does not believe that sex discrimination violates the Constitution if the practice has a long history.

(4) Thomas would allow the President to declare any citizen an unlawful combatant and imprison him indefinitely without any protections of the Bill of Rights.

(5) Scalia and Thomas would allow states to avoid paying damages for violating federal guarantees of family and medical leave.

(6) Scalia and Thomas would allow states to execute the mentally retarded.

(7) Scalia and Thomas don't think that brutality against prisoners violates the Constitution.

(8) Scalia and Thomas would allow states to criminalize consensual sex between unmarried adults.

(9) Scalia and Thomas would strip the EPA of the ability to protect air quality.

(10)Scalia and Thomas would allow states to avoid paying damages when they discriminate against the disabled.

It seems to me that these claims are troublesome enough-- particularly number 4-- without any additional embellishment. There is no need to misstate things to explain why the public should not support more judicial appointments like this.

Posted 4:14 PM by JB [link]